Koloi v The Queen - [2004] NZCA 199

IN THE COURT OF APPEAL OF NEW ZEALAND
CA447/03
THE QUEEN
v
SALOTE EVEEA HEFAAFE KOLOI
Hearing:16 August 2004

Coram:O'Regan J
Randerson J
Heath J
Appearances: M F Tuilotolava for Appellant

F E Guy for Crown

Judgment:24 August 2004

JUDGMENT OF THE COURT DELIVERED BY RANDERSON J

Introduction
[1]       The appellant was convicted after trial in the District Court of two counts of assaulting patients at an Auckland geriatric hospital. She was acquitted of 13 other assault counts relating to different patients.
[2]       Judge J P Doogue considered that a deterrent sentence was called for and imposed concurrent sentences of six months imprisonment on each charge. The Judge granted the appellant leave to apply for home detention which was later granted. We were informed that the appellant has now completed her sentence.
Background facts
[3]       The appellant was employed as a nurse aid at the hospital. The Crown charged her with assaulting seven patients, some of them on more than one occasion. One of the principal Crown witnesses was another nurse aid employed at the hospital, a Ms Tuitopou. Indeed, Ms Tuitopou was the sole Crown witness in relation to many of the charges. The Crown case was that the alleged assaults had a number of common features. These were that the appellant had assaulted the patients in order to get them to comply with her directions; that the patients were persons incapable of looking after themselves and of communicating or complaining to anyone about the assaults; and that the assaults generally took the form of slaps or punches to the head or a blow to the leg. The defence was that none of the assaults happened and that the key Crown witnesses had fabricated their evidence.
[4]       The trial was due to commence on 6 October 2003. At a late stage, the Crown applied to amend the indictment to increase the number of counts to 25, alleging additional assaults on other patients. That application was declined by Judge Joyce QC on 30 September 2003 but the Crown then sought to adduce the additional material as similar fact evidence. That application was granted in a second ruling by Judge Joyce on 2 October 2003. The similar fact evidence was to come from five additional witnesses giving evidence about alleged assaults on four additional patients.
[5]       After a trial occupying six days, the jury found the appellant guilty of count 13 alleging an assault on a Ms Rankin in the period 1 October 2000 to 31 July 2001 and count 15 alleging an assault on a Mrs Reid on or about 30 June 2001.
Grounds of appeal
[6]       Ms Tuilotolava raised a number of grounds in support of the appeal against conviction. These may be grouped as follows:
a)The similar fact evidence should not have been admitted and the summing up by the trial Judge was inadequate on the issue;
b)The summing up on the evidence relating to count 13 was wrong;
c)There were errors in the summing up on count…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Koloi v The Queen

Details

AGLC: Koloi v The Queen [2004] NZCA 199
Case: [2004] NZCA 199
Decision Date: 24 August 2004

CaseChat Overview and Summary

The appellant, Salote Evea Hefaafe Koloi, was convicted by the District Court of two counts of assaulting patients at an Auckland geriatric hospital. Koloi was acquitted of 13 other assault counts relating to different patients. The appellant appealed against both her conviction and sentence. The appeal against conviction raised several issues, including the admissibility of similar fact evidence, alleged errors in the summing up on certain counts, and the inconsistency of the verdicts. The Court found that while there were some reservations about the extent and nature of the similar fact evidence, it did not have a material bearing on the outcome. Regarding the summing up, the Court found no material misdirection. However, the Court found that the conviction on count 15 was unsafe due to the improper use of inadmissible evidence by the jury. Regarding the appeal against sentence, the Court found that the sentences imposed were appropriate but for the quashing of the second conviction, a reduction in the sentence was necessary. The Court quashed the conviction and sentence on count 15 and substituted a sentence of three months imprisonment on the remaining count. The conviction on count 13 will stand, but the sentence will be reduced to three months imprisonment.

Orders